Can bailiffs to impose fines on banks
The discussion about the delimitation of competencies of the Central Bank of the Russian Federation and the Federal bailiff service of Russia with respect to the accountability of credit institutions for violation of the rights of the defaulter for the recovery of the debt is gaining momentum. Federal bailiff service confident that this issue of the Federal law from 03.07.2016, № 230 – FZ "On protection of rights and legitimate interests of individuals with the implementation of overdue debts and on amendments to the Federal law "About microfinance performance and microfinance organizations" (hereinafter – the "Law on payments") are automatically included in its oversight. CBR believes that this function belongs to him as the main "regulator" of the banking sector.
Whom the legislator has given the mandate to resolve this issue?
This will help to understand the legal analysis of normative acts regulating these relationships and activities of these bodies.
The law on debt collection identifies three groups of entities that can act on behalf and (or) in interests of the creditor in the Commission of such actions:
— the credit institution;
— persons engaged in debt collection as a major activity included in the state register (i.e. the collectors);
— other persons (article 5).
According to article 18 of the law of the Federal bailiff service of Russia is the body executing the functions of the Federal state control (supervision) over compliance with its requirements in relation to the second above-mentioned group. In respect of credit institutions and other persons such powers to the Federal bailiff service of Russia, the law is not provided.
Paragraph 104 of article 28.3 of the administrative code establishes the responsibility of the Federal bailiff service of Russia to draw up protocols on administrative offences, committed during the implementation of measures to recover the overdue amount and as stipulated in article 14.57 administrative code. In this article, the legislator explicit exclude the credit institution from entities that may be brought to administrative liability for failure to comply with the requirements of the legislation on the protection of rights and interests of individuals with the implementation of overdue debt.
Summing up, it follows that the Federal bailiff service of Russia is not empowered by the attraction of credit organizations to the administrative responsibility, including fines for deviations from the norms of the Law on debt collection. Accordingly, such illegal actions of the Federal bailiff service of Russia can be challenged in court.
Interesting is the fact that the legitimacy of the behavior of the Central Bank of the Russian Federation in the adoption of such measures to the credit organizations also questionable.
So, the Federal law of 10.07.2002 № 86 – FZ "On the Central Bank of the Russian Federation (Bank of Russia)" (hereinafter – the "Law on the Central Bank" does not contain separate rules establishing the responsibility of the Central Bank of the Russian Federation to conduct control (supervision) over the observance by credit institutions of the requirements of the Law on debt collection.
Among those listed in article 4 of the Law on the Central Bank of its functions, there are two related to monitoring: supervision and monitoring of the national payment system and banking supervision. The first covers the legal and organizational framework of payment services that has no connection with videomachine the procedure for recovery of the debt.
The purpose of the second is to maintain the stability of the banking system of the Russian Federation and protection of interests of depositors and creditors. Since the Law on debt collection "protects" debtors, not savers and creditors, and demands of credit institutions established as to persons attempting to repay debt, it follows that it is unlikely that the function of banking supervision involves the activities of the Central Bank to monitor banks ' compliance with this law.
However, it is impossible not to draw attention to the fact that article 19 of the Federal law from 02.12.1990 № 395 -1 "On banks and banking activities" provides for the possibility of the Bank of Russia in order of supervision to the credit organisations of measures of influence in case of violation of Federal laws. In particular, the Central Bank of the Russian Federation in such cases may require the credit institution to eliminate the detected violations, to recover a penalty of up to 0.1 percent of minimum Charter capital or to limit carrying out by the credit organisation of separate operations. Given that the phrase "in case of violation of the Federal laws" quite large in meaning, it is difficult to imagine how will be its interpretation in practice.